THE PRIVATE BANK OF CALIFORNIA VS ELLA AVERY SMOTHERS, ET AL

Tentative Rulings

Case Number: SC118165    Hearing Date: December 18, 2020    Dept: P

Tentative Ruling

The Private Bank of CA v. Smothers et al., Case No. SC118165

Hearing Date December 18, 2020

Judgment Creditor’s Motion for Additional Award of Attorney’s Fees (UNOPPOSED)

Plaintiff/judgment creditor the Private Bank of California (“The Bank”) obtained a judgment against defendants in 2015. On June 30, 2016 the Bank and judgment debtors entered a settlement agreement, stipulating the Bank is owed more than $3,000,000 and providing for attorney’s fees in connection with enforcing the agreement. On September 19, 2017 the court granted the Bank’s motion for fees in connection with attempts to enforce the settlement agreement. The Bank continued to attempt to enforce the settlement agreement through the present and moves for additional fees incurred from 2017 to present.

Attorney’s fees incurred in enforcing a judgment are included as costs if the underlying judgment includes an award of attorney’s fees. Cal. Code of Civ. Proc. §685.040. A postjudgment fee award constitutes a judgment and additional attorney’s fees incurred enforcing such an award may also be recovered. Lucky United Properties Inv., Inc. v. Lee (2010) 185 Cal.App.4th 125, 138.

The Bank’s attorneys spent 465.70 hours enforcing its judgment since 2017 and request an hourly fee of $393.40. The Bank identifies various services, including creating judgment liens, overseeing collections efforts in Virginia, tracking litigation between judgment debtors and former counsel and filing various fee motions. The motion is unopposed, and the court finds the services performed to be reasonable. The motion is not opposed. The Bank is entitled to a recovery of fees under Lucky. Additional fees of $186,207 are GRANTED.

DUE TO THE ONGOING COVID-19 PANDEMIC, PARTIES AND COUNSEL ARE ENCOURAGED TO APPEAR VIA LA COURT CONNECT.

Case Number: SC118165    Hearing Date: June 26, 2020    Dept: P

TENTATIVE RULING

The Private Bank of California v. Ella Avery Smothers, et al. Case No. SC118165

Hearing Date: 6/26/2020

Motions by attorney David R. Krause-Leemon to be Relieved as Counsel

Granted.

IN LIGHT OF THE ONGOING COVID-19 PANDEMIC, PARTIES ARE STRONGLY ENCOURAGED TO ATTEND ORAL ARGUMENTS VIA COURT CALL.

Case Number: SC118165    Hearing Date: October 29, 2019    Dept: P

The Private Bank of California v. Ella Avery Smothers et al. CASE NUMBER: SC118165

HEARING DATE: 8/29/2019

Plaintiff’s motion for attorney’s fees

TENTATIVE RULING

Judgment was entered for plaintiff /judgment creditor The Private Bank of California in May 2015. In satisfaction of this judgment and another related judgment, the parties signed a settlement agreement requiring defendants to sell four Burger King restaurants and apply the proceeds towards the judgments. The settlement contained an attorney’s fees clause.

After the sale of the restaurants, defendants sought disgorgement of $555,000.00 in sale proceeds; the court denied the motion. Plaintiff then filed a motion for an award of attorneys’ fees incurred in enforcing the settlement agreement, and judgment debtors filed a motion to tax costs. In August 2018, the Bank filed a motion for an additional award of attorneys’ fees, seeking to recover fees incurred in its efforts to enforce the settlement and its previous fee award. That motion was denied without prejudice, with the court instructing the Bank to file the instant motion and requiring the Bank to demonstrate all fees sought were attributable to collection efforts under the settlement agreement.

Once a party is awarded attorneys’ fees, the award is treated like a judgment and additional fees incurred in collecting the award are also recoverable if they are “reasonable and necessary.” Lucky United Properties Investment, Inc. v. Lee (2013) 213 Cal.App.4^th 635. “A court may not rubber stamp a request for attorney’s fees but must determine the number of hours reasonably expended.” Donahue v. Donahue (2010) 182 Cal.App.4^th 259, 271.

Via this motion, plaintiff does not seek a specific fee award, but rather a general order stating it is entitled to recover fees incurred enforcing the prior fee order. Defendants do not dispute plaintiff’s entitlement to such fees, but argue the motion should be denied because plaintiff has not set forth the number of hours reasonably expended. Defendant is correct. Granting plaintiff’s motion would have no effect, since a determination that plaintiff is entitled to recover some fees does not mean that plaintiff is entitled to recover all claimed fees. This motion is premature—plaintiff must set forth the amount of fees claimed and explain why the amount is reasonable and necessary. DENIED without prejudice.